(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/
::: Downloaded on - 09/06/2013 14:32:54 :::
(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,
::: Downloaded on - 09/06/2013 14:32:54 :::
(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.
::: Downloaded on - 09/06/2013 14:32:54 :::
(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,
::: Downloaded on - 09/06/2013 14:32:54 :::
(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 )
…
(agp:u/fa4058-08gr)
::: Downloaded on – 09/06/2013 14:32:54 :::