Gujarat High Court Case Information System
Print
FA/4524/2009 15/ 15 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
FIRST
APPEAL No. 4524 of 2009
To
FIRST
APPEAL No. 4528 of 2009
With
CIVIL
APPLICATION No. 13105 of 2009
In
FIRST APPEAL No. 4524 of 2009
To
CIVIL
APPLICATION No. 13109 of 2009
In
FIRST APPEAL No. 4528 of 2009
=========================================================
UNION
OF INDIA - Appellant(s)
Versus
LEGAL
HERIS OF DECEASED,TULSIDASBHAI SAGARBHAI,MINOR HARESH & 7 -
Defendant(s)
=========================================================
Appearance
:
MR
BIPIN I MEHTA for
Appellant(s) : 1,
MRYJPATEL for Defendant(s) : 1 - 5.
None for
Defendant(s) : 6 - 7.
MR SHASHIKANT S GADE for Defendant(s) :
8,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE H.K.RATHOD
Date
: 01/02/2010
ORAL
ORDER
Heard
learned Advocate Mr.Bipin I. Mehta for appellants, learned Advocate
Mr. YJ Patel for respondents NO.1-5 and learned Advocate Mr.
Shashikant S.Gade for respondent NO. 8 in this group of appeals.
By
filing these appeals, appellant Union of India through General
Manager, Western Railway, Church Gate, Mumbai has challenged common
award made by claims tribunal Surendranagar Exh. 65 in Claim
Petition No. 422 of 1998 to 426 of 1998 decided on 26.2.2009
awarding amount of compensation worked out in favour of claimants
with 9 per cent interest.
Learned
Advocate Mr. Mehta appearing for appellant has raised contention
that claims tribunal has committed an error in law and facts in
holding present appellant 50 per cent negligent in causing accident
and has also committed an error in directing appellant to satisfy 50
per cent of awarded amount. He submitted that claims tribunal ought
to have appreciated that the railway crossing on which rickshaw was
passing was unmanned and train was passing as per the schedule,
therefore, rickshaw driver ought to have driven his rickshaw
carefully. He further submitted that it ought to have been
appreciated by claims tribunal that no negligence could have been
apportioned to railway authorities since railway administration had
put up two speed breaker on both the either side of road to slower
down the speed of coming vehicle and the sign board of whistling
railway was also put up, therefore, each and every vehicle driver
can be made aware that railway crossing is unmanned and there were
ample speed brakers and sign board to avoid accident. He further
submitted that it ought to have been appreciated by claims tribunal
that after accident, railway had carried out investigation and
pursuant to that investigation, deposition were taken and report was
submitted to the effect that driver of rickshaw was solely negligent
in causing the accident. He further submitted that it ought to have
been appreciated by claims tribunal that the gate near Vagodiya
Station was open and unmanned. Driver of rickshaw was driving his
vehicle rashly and negligently and tried to cross the unmanned LC G
ate from left side when train reached much closer to the LC Gate and
dashed with Engine No. 1270, that came at 11.50 hours. As per his
submission, unmanned LC Gate No. 66 is katcha metalled road on both
sides which links Mansar and Ramprade Thane Road. The road of LC
Gate is levelled; stop boards are posted on both sides of a distance
of 5.95 and 5.78 or either sides for guidance of the road users.
Speed brakers are also provided on either side for guidance of road
users. Whistle boards are also put on both sides along with track of
a distance of 1000 mtrs.,thus, it was adequately clear that driver
of auto rickshaw had violated rule 161 of Motor Vehicle Rules and
rule 174 of Rules under Railways Act. He further submitted that
claims tribunal ought to have appreciated that no negligence could
be attributed to railway because accident took place in broad day
light, and brakes of train was in perfect condition. As per his
submission, train was running at 98 hours speed, hence driver of
rickshaw was careless and negligent for accident. He also submitted
that the claimant had not proved income of deceased and there was no
material on record to fortify claim of claimant but that aspect has
not been considered by claims tribunal.
Learned
Advocate Mr. Patel appearing for respondents claimants and learned
advocate Mr. SS Gade have appeared for respondents and made
submissions supporting award. From record, it is made clear that no
appeal is preferred by respondent insurance company challenging
finding given by claims tribunal in respect of negligence
apportioned by claims tribunal. Learned Advocate Mr. Patel for
claimants has submitted that in present accident, driver of rickshaw
expired and other four persons also expired including one minor and
so, in all, five persons have expired in said accident, those who
were labourers and poor persons doing work of labour and maintaining
their families. Amrutben Sagarbhai, Hitesh Tulsibhai, Vithalbhai
Chhanabhai and driver Ukabhai Vithalbhai died in said accident.All
persons were going in rickshaw on 24th May, 1998 at
Vagadia village for religious ceremony. At about 12.00 hours, near
Vagadia Railway Station, while they were passing through unman gate
of railway, which is registered in Western Railway as 66-C, at that
time, one Express Train Bhopal Rajkot going to Rajkot. With engine
of said train, rickshaw dashed and due to that, for negligence of
both drivers, accident had taken place and rickshaw was dragged upto
long distance with engine and rickshaw had been smashed totally and
along with four passengers who had boarded therein, Ukabhai
Vithalbhai died. It was alleged by claimants that the railway track
was not in the straight direction but was having curving nature. It
was alleged by claimants that unmanned gate is very much dangerous
for human life and for that, there is an absolute responsibility of
the railway and there were ditches in the space between tracks of
railway and at that place, , no sign was displayed which also could
be considered as an absolute negligence and carelessness on the part
of railways. Therefore, based upon aforesaid facts, above referred
claim petitions were filed by claimants before claims tribunal. It
is submitted by learned Advocate Mr. Patel for claimants that before
claims tribunal, no evidence was led by appellants railway authority
and no report was produced on record which has been referred to in
ground of appeal memo. Report based on investigation done by railway
authority has not been produced on record and that report was not
proved by railway authority and complaint was filed by one person
Vahanbhai Ratabhai Kanjaria. Complaint was produced at Exh. 30.
Evidence was given by complainant Vahanbhai Ratabhai Kanjaria before
claims tribunal. Panchanama of scene of incident was produced at
Exh. 31. As per said panchanama, scene of offence was shown by
Mansukhbhai Sindhabhai Panara who was serving in Railways. As per
said panchanama, near Vagadia Railway Station, Unmanned Gate No.
66/C has been situated. Pakka road through said crossing unmanned
gate is going towards Vagadia Manpar. He submitted that claims
tribunal has rightly considered evidence of claimants as well as
FIR, Panchanama and evidence of Vahanbhai Ratabhai Kanjaria and on
that basis rightly apportioned liability of railway authority for
said accident. He submitted that evidence of complainant Vahanbhai
Ratabhai has not been challenged by advocate for appellant in his
cross examination and no adverse facts were brought on record either
by any evidence to contrary or by making searching cross examination
of said witness and, therefore, claims tribunal has rightly
appreciated evidence on record and after appreciation of such
evidence on record, has rightly held that it is a case of composite
negligence where both drivers are found equally responsible for
accident and has rightly apportioned responsibility 50:50 amongst
driver of rickshaw and railway engine. He also submitted that
income in respect of each claimant has also been rightly assessed by
claims tribunal and has rightly awarded compensation in favour of
claimants and in doing so, no error has been committed by claims
tribunal and, therefore, there is no substance in these appeals and
same are required to be dismissed.
I
have considered submissions made by learned advocates for respective
parties. I have also perused impugned award made by claims tribunal.
Claim petitions were filed by heirs and legal representatives of
deceased persons who lost their lives in said accident before claims
tribunal. Family members of Tulsi Sagar were going at village
Vagadia for performing religious ceremony in rickshaw driven by
Ukabhai, owned by Yakub Noormohamad after deciding fare, at about
12.00 hours near Vagadia Railway Station, passed through unmanned
railway crossing No. 66/C. At that time, train going towards Rajkot
Side on route of Bhopal-Rajkot passed through said track and engine
of said train dashed with said rickshaw which resulted in death of
total five persons including one driver and minor. It was a case of
claimants before claims tribunal that around unmanned railway
crossing, tracks are not in straight condition but they were having
curving nature and such unmanned gates are dangerous for human life
and there was no signal or sign board and there was no approaching
rough road as well as straight road and so, if vehicle has to pass
through railway track, then, it was not easy to pass through it
because there was no tar road and, therefore, there was no
comfortable crossing and there was no clear vision available to
driver as well as user of vehicle because of number of trees
covering area on both sides about more than one kilo meter and,
therefore, engine driver was not able to see passing of any vehicle
and similarly, user of vehicle would also not be able to see whether
any train is coming from either of side or not. According to rules,
this area from both sides of unmanned railway crossing is required
to be kept open and there cannot be any hurdle of trees for
enabling driver of engine and user of vehicle passing through said
unmanned crossing to have complete and clear vision on both sides.
On that point, as against the evidence of claimants, no evidence
whatsoever was produced by railway authority. Before claims
tribunal, written statement was filed by railway authority at Exh.
8, 16, 19 and 18 contending that it was a clear case of negligence
of driver of rickshaw and due to that accident has taken place and
there was no negligence on the part of driver of railway engine but
such averments made in written statement remained as it is because
such averments made by railway authority in written statement have
not been proved by railway authority by leading proper evidence
before claims tribunal. Engine Driver was also not examined by
railway authority before claims tribunal. For claimants, it was very
difficult to examine eye witness because persons driving in rickshaw
as well as person driving rickshaw died in said accident and,
therefore, person who immediately visited place of accident Shri
Vahanbhai who filed FIR on 24.5.98 was examined before claims
tribunal and his evidence has been discussed by claims tribunal
which was cross examined by railway authority. In his evidence
before claims tribunal, it was deposed by him that after accident,
auto rickshaw involved in accident was dragged by railway engine and
rickshaw had been smashed completely and total five persons lost
their lives in said sad accident including driver of rickshaw.
According to evidence of claimant before claims tribunal, railway
authority must have to provide manned railway crossing for securing
safety of human life. He deposed that from unmanned railway
crossing, engine driver and user of vehicle must see from both sides
and must have vision of both sides but that was not so at the scene
of incident because of number of obstructions and due to number of
trees and due to that, it was very much difficult for engine driver
as well as vehicle user to have vision of both sides while crossing
unmanned railway crossing and road which was prepared by railway
authority between tracks of railway was also not found to be proper
and there were ditches between both tracks which amounts to
obstructions to passing of vehicle through such tracks and there was
no sign board/signal or picture of engine and there was no even
marking or any indication provided by railway authority on said
unmanned railway crossing where accident had taken place.
Requirements as per rules to be maintained by railway authority had
not been found on unmanned railway crossing and according to
complainant, in his evidence, there was no clear vision available
on unmanned gate from both sides. Evidence of complainant was cross
examined. No doubt, he was not an eye witness to said accident but
he was a person who had immediately visited place of accident after
accident having knowledge and clear information about place of
accident and also having knowledge of situation of railway track
road and not having clear vision from both sides and also
considering panchanama and condition of auto rickshaw involved in
accident. Claims tribunal has considered these facts found from
place of accident as deposed by complainant before claims tribunal
in his chief examination which were not challenged in cross
examination by railway authority, therefore, in respect to site of
accident or place of accident, whatever evidence available before
claims tribunal, complainant was cross examined, that has been
considered by claims tribunal, Surendranagar and there was no any
evidence in rebuttal produced by railway authority before claims
tribunal. When complainant was examined who has visited place of
accident immediately after accident and who was having clear picture
of place of accident and also knowing fully well condition of road
from both sides and also position of track, track not found to be
straight but having curves and also not having clear vision about
1000 meter due to various kind of obstruction like trees available
on both sides which facts are not challenged by railway authority
while cross examining said witness. Therefore, claims tribunal has
considered these facts which were neither challenged nor rebutted
by railway authority by producing any evidence to the contrary.
Claims Tribunal has also considered decision of this Court in case
of Hamidabanu Balubhai versus Vasantbhai Virabhai Harijan, reported
in 2007 ACJ Page 240 (Gujarat); [2] GSRTC versus Hanif Mohamad
Bismillakhan, 1997 (1) GLR 631; [3] GSRTC versus Kamlaben Valjibhai
Vora, 1997 (3) GLR 2528; [4] New India Assurance Co. versus
Ashokbhai Ranchhodbhai Patel, 1992 (1) GLR 482. After considering
aforesaid decisions while keeping in view facts of present case
namely evidence of complainant not challenged by railway authority
in his cross examination, claims tribunal has come to conclusion
that it is a case of composite negligence of both drivers and
railway authority is also equally responsible for that in not
maintaining properly unmanned railway crossing and not putting
writing, sign board or signal and putting no indication at the place
of incident and considering such evidence on record, claims tribunal
has held that engine driver as well as driver of auto rickshaw both
are negligent to the extent of 50:50. According to my opinion,
considering evidence of complainant as appreciated by claims
tribunal against which no evidence in rebuttal was produced by
railway authority before claims tribunal, claims tribunal has
rightly decided that it is a case of composite negligence and
drivers of both vehicles are equally responsible for such accident,
therefore, contentions raised by learned Advocate Mr.Mehta cannot be
accepted because from appellant side, no evidence was produced
before claims tribunal, Surendranagar. According to my opinion, for
proving sole negligence on the part of driver of auto rickshaw, it
is the duty of appellant railway authority to prove that all safe
guards necessary to be provided on unmanned gate were provided and
maintained by railway authority at the place of accident and looking
to the discussion made by claims tribunal for deciding issue of
negligence between engine driver and driver of auto rickshaw, it
appears that no evidence to that effect was produced by railway
authority before claims tribunal because the statements made by
complainant in his evidence on material points were not challenged
by railway authority during his cross examination and all those
statements made by complainant in his examination in chief were not
challenged or rebutted by railway authority and therefore, in view
of that finding given by claims tribunal in respect of question of
negligence deciding 50:50 per cent negligence of both drivers cannot
be found to be erroneous or contrary to facts on record. According
to my opinion, such findings recorded by claims tribunal after
considering legal evidence cannot be considered to be baseless and
perverse and, therefore, contentions raised by learned Advocate
Mr.Bipin I. Mehta in that regard cannot be accepted and same are,
therefore, rejected.
As
regards contentions raised by learned Advocate Mr. Mehta in respect
to assessment of income, looking to evidence of claimants as
appreciated by claims tribunal, claims tribunal has rightly examined
matter while assessing income of deceased based on evidence of
claimants against which there was no any evidence in rebuttal
produced by appellant railway authority before claims tribunal.
While deciding question of income, claims tribunal has also
considered decision of this court in case of GSRTC versus Kamlaben
Vora reported in 2001 GLR page 252 para 70 to 76 [2] Rita alias
Vanita Dipak Hira versus Ahmedabad Municipal Transport Corporation
reported in 1999 (1) GLR page 388 para 9; [3] United India Insurance
Company Ltd. Versus Chandubhai Gokalbhai reported in 2003 (3) GLR
page 2386 para 9; [4] New India Assurance Co. versus Madhavsing
Nathuji reported in 2003 (1) GLR page 517 para 11; [5]
Mithunkulkrushna Banerjee versus Sitanath Bengali and others
reported in 2007 (1) GLR 354 Head Note B, para 5 and after
considering aforesaid decisions in light of evidence on record in
respect to income of deceased in each case, claims tribunal has
decided income of deceased in each case. According to my opinion,
claims tribunal has rightly assessed income of deceased and has
rightly applied multiplier considering age of deceased in each case
and on that basis, has rightly worked out compensation available to
claimants in each case which cannot be considered to be unjust or on
higher side in any manner whatsoever and, therefore, contentions
raised by learned Advocate Mr. Mehta in that regard cannot be
accepted. Same are, therefore, rejected.
In
view of aforesaid discussion made by this Court after perusal of
common award passed by claims tribunal at Surendranagar and also
considering submissions made by learned advocates for respective
parties, according to my opinion, common award made by claims
tribunal is found to be quite legal, proper and just and no error is
committed by claims tribunal either in deciding question of
negligence between engine driver and driver of auto rickshaw or in
deciding quantum of compensation and, hence, there is no substance
in these appeals and therefore, these appeals are required to be
dismissed.
Accordingly,
in view of reasons recorded herein above, these appeals are
dismissed. Amount, if any, deposited by appellant in registry of
this court be transmitted to claims tribunal immediately.
Civil
Applications for stay filed by appellant also stands disposed of
accordingly.
(H.K.
Rathod,J.)
Vyas
Top