{"id":69211,"date":"2010-02-01T00:00:00","date_gmt":"2010-01-31T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/union-vs-legal-on-1-february-2010"},"modified":"2018-09-16T09:20:42","modified_gmt":"2018-09-16T03:50:42","slug":"union-vs-legal-on-1-february-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/union-vs-legal-on-1-february-2010","title":{"rendered":"Union vs Legal on 1 February, 2010"},"content":{"rendered":"
Gujarat High Court<\/div>\n
Union vs Legal on 1 February, 2010<\/div>\n
Author: H.K.Rathod,&Nbsp;<\/div>\n
   Gujarat High Court Case Information System \n\n  \n  \n    \n\n \n \n    \t      \n         \n\t    \n\t\t   Print\n\t\t\t\t          \n\n  \n\n\n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t\n\n\n \n\n\n\t \n\nFA\/4524\/2009\t 15\/ 15\tORDER \n \n \n\n\t\n\n \n\nIN\nTHE HIGH COURT OF GUJARAT AT AHMEDABAD\n \n\n \n\n\n \n\nFIRST\nAPPEAL No. 4524 of 2009\n \n\nTo\n\n\n \n\nFIRST\nAPPEAL No. 4528 of 2009\n \n\nWith\n\n\n \n\nCIVIL\nAPPLICATION No. 13105 of 2009\n \n\nIn\nFIRST APPEAL No. 4524 of 2009\n \n\nTo\n\n\n \n\nCIVIL\nAPPLICATION No. 13109 of 2009 \n\n \n\nIn\nFIRST APPEAL No. 4528 of 2009\n \n\n \n \n=========================================================\n\n \n\nUNION\nOF INDIA - Appellant(s)\n \n\nVersus\n \n\nLEGAL\nHERIS OF DECEASED,TULSIDASBHAI SAGARBHAI,MINOR HARESH & 7 -\nDefendant(s)\n \n\n=========================================================\n\n \n\n \nAppearance\n: \nMR\nBIPIN I MEHTA for\nAppellant(s) : 1, \nMRYJPATEL for Defendant(s) : 1 - 5. \nNone for\nDefendant(s) : 6 - 7. \nMR SHASHIKANT S GADE for Defendant(s) :\n8, \n=========================================================\n\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\nCORAM\n\t\t\t: \n\t\t\t\n\t\t\n\t\t \n\t\t\t \n\nHONOURABLE\n\t\t\tMR.JUSTICE H.K.RATHOD\n\t\t\n\t\n\n \n\n \n \n\n\n \n\nDate\n: 01\/02\/2010 \n\n \n\n \n \nORAL\nORDER<\/pre>\n
Heard
\n\tlearned Advocate Mr.Bipin I. Mehta for appellants, learned Advocate
\n\tMr. YJ Patel for respondents NO.1-5 and learned Advocate Mr.
\n\tShashikant S.Gade for respondent NO. 8 in this group of appeals.\n<\/p>\n
By
\n\tfiling these appeals, appellant   Union of India through General
\n\tManager, Western Railway, Church Gate, Mumbai has challenged common
\n\taward made by claims tribunal Surendranagar Exh. 65 in Claim
\n\tPetition No. 422 of 1998 to 426 of 1998 decided on 26.2.2009
\n\tawarding amount of compensation worked out in favour of claimants
\n\twith 9 per cent interest.\n<\/p>\n
Learned
\n\tAdvocate Mr. Mehta appearing for appellant has raised contention
\n\tthat claims tribunal has committed an error in law and facts in
\n\tholding present appellant 50 per cent negligent in causing accident
\n\tand has also committed an error in directing appellant to satisfy 50
\n\tper cent of awarded amount. He submitted that claims tribunal ought
\n\tto have appreciated that the railway crossing on which rickshaw was
\n\tpassing was unmanned and train was passing as per the schedule,
\n\ttherefore, rickshaw driver ought to have driven his rickshaw
\n\tcarefully. He further submitted that it ought to have been
\n\tappreciated by claims tribunal that no negligence could have been
\n\tapportioned to railway authorities since railway administration had
\n\tput up two speed breaker on both the either side of road to slower
\n\tdown the speed of coming vehicle and the sign board of whistling
\n\trailway was also put up, therefore, each and every vehicle driver
\n\tcan be made aware that railway crossing is unmanned and there were
\n\tample speed brakers and sign board to avoid accident. He further
\n\tsubmitted that it ought to have been appreciated by claims tribunal
\n\tthat after accident, railway had carried out investigation and
\n\tpursuant to that investigation, deposition were taken and report was
\n\tsubmitted to the effect that driver of rickshaw was solely negligent
\n\tin causing the accident. He further submitted that it ought to have
\n\tbeen appreciated by claims tribunal that the gate near Vagodiya
\n\tStation was open and unmanned. Driver of rickshaw was driving his
\n\tvehicle rashly and negligently and tried to cross the unmanned LC G
\n\tate from left side when train reached much closer to the LC Gate and
\n\tdashed with Engine No. 1270, that came at 11.50 hours. As per his
\n\tsubmission, unmanned LC Gate No. 66 is katcha metalled  road on both
\n\tsides which links Mansar and Ramprade Thane Road. The road of LC
\n\tGate is levelled; stop boards are posted on both sides of a distance
\n\tof 5.95 and 5.78 or either sides for guidance of the road users.
\n\tSpeed brakers  are also provided on either side for guidance of road
\n\tusers. Whistle boards are also put on both sides along with track of
\n\ta distance of 1000 mtrs.,thus, it was adequately clear that driver
\n\tof auto rickshaw had violated rule 161 of Motor Vehicle Rules and
\n\trule 174 of Rules under Railways Act. He further submitted that
\n\tclaims tribunal ought to have appreciated that no negligence could
\n\tbe attributed to railway because accident took place in broad day
\n\tlight, and brakes of train was in perfect condition. As per his
\n\tsubmission, train was running at 98 hours speed, hence driver of
\n\trickshaw was careless and negligent for accident. He also submitted
\n\tthat the claimant had not proved income of deceased and there was no
\n\tmaterial on record to fortify claim of claimant but that aspect has
\n\tnot been considered by claims tribunal.\n<\/p>\n
Learned
\n\tAdvocate Mr. Patel appearing for respondents claimants and learned
\n\tadvocate Mr. SS Gade have appeared for respondents and made
\n\tsubmissions supporting award. From record, it is made clear that no
\n\tappeal is preferred by respondent insurance company challenging
\n\tfinding given by claims tribunal in respect of negligence
\n\tapportioned by claims tribunal. Learned Advocate Mr. Patel for
\n\tclaimants has submitted that in present accident, driver of rickshaw
\n\texpired and other four persons also expired including one minor and
\n\tso, in all, five persons have expired in said accident, those who
\n\twere labourers and poor persons doing work of labour and maintaining
\n\ttheir families. Amrutben Sagarbhai, Hitesh Tulsibhai, Vithalbhai
\n\tChhanabhai and driver Ukabhai Vithalbhai died in said accident.All
\n\tpersons were going in rickshaw on 24th May, 1998 at
\n\tVagadia village for religious ceremony. At about 12.00 hours, near
\n\tVagadia Railway Station, while they were passing through unman gate
\n\tof railway,  which is registered in Western Railway as 66-C, at that
\n\ttime, one Express Train Bhopal Rajkot going to Rajkot. With engine
\n\tof said train, rickshaw dashed and due to that, for negligence of
\n\tboth drivers, accident had taken place and rickshaw was dragged upto
\n\tlong distance with engine and  rickshaw had been smashed totally and
\n\talong with four passengers who had boarded therein, Ukabhai
\n\tVithalbhai died. It was alleged by claimants that the railway track
\n\twas not in the straight direction but was having curving nature. It
\n\twas alleged by claimants that unmanned  gate is very much dangerous
\n\tfor human life and for that, there is an absolute responsibility of
\n\tthe railway and there were ditches in the space between tracks of
\n\trailway and at that place, , no sign was displayed which also could
\n\tbe considered as an absolute negligence and carelessness on the part
\n\tof railways. Therefore, based upon aforesaid facts, above referred
\n\tclaim petitions were filed by claimants before claims tribunal. It
\n\tis submitted by learned Advocate Mr. Patel for claimants that before
\n\tclaims tribunal, no evidence was led by appellants railway authority
\n\tand no report was produced on record which has been referred to in
\n\tground of appeal memo. Report based on investigation done by railway
\n\tauthority has not been produced on record and that report was not
\n\tproved by railway authority and complaint was filed by one person
\n\tVahanbhai Ratabhai Kanjaria. Complaint was produced at Exh. 30.
\n\tEvidence was given by complainant Vahanbhai Ratabhai Kanjaria before
\n\tclaims tribunal. Panchanama of scene of incident was produced at
\n\tExh. 31. As per said panchanama, scene of offence was shown by
\n\tMansukhbhai Sindhabhai Panara who was serving in Railways.  As per
\n\tsaid panchanama, near Vagadia Railway Station, Unmanned Gate No.
\n\t66\/C has been situated. Pakka road through said  crossing unmanned
\n\tgate is going towards Vagadia Manpar.   He submitted that claims
\n\ttribunal has rightly considered evidence of claimants as well as
\n\tFIR, Panchanama and evidence of Vahanbhai Ratabhai Kanjaria and on
\n\tthat basis rightly apportioned  liability of railway authority for
\n\tsaid accident. He submitted that evidence of complainant Vahanbhai
\n\tRatabhai has not been challenged by advocate for appellant in his
\n\tcross examination and no adverse facts were brought on record either
\n\tby any evidence to contrary or by making searching cross examination
\n\tof said witness and, therefore, claims tribunal has rightly
\n\tappreciated evidence on record and after appreciation of such
\n\tevidence on record, has rightly held that it is a case of composite
\n\tnegligence where both drivers are found equally responsible for
\n\taccident and has rightly apportioned responsibility 50:50 amongst
\n\tdriver of rickshaw and railway engine.  He also submitted that
\n\tincome in respect of each claimant has also been rightly assessed by
\n\tclaims tribunal and has rightly awarded compensation in favour of
\n\tclaimants and in doing so, no error has been committed by claims
\n\ttribunal and, therefore,  there is no substance in these appeals and
\n\tsame are required to be dismissed.\n<\/p>\n
I
\n\thave considered submissions made by learned advocates for respective
\n\tparties. I have also perused impugned award made by claims tribunal.
\n\tClaim petitions were filed by heirs and legal representatives of
\n\tdeceased persons who lost their lives in said accident before claims
\n\ttribunal. Family members of Tulsi Sagar were going at village
\n\tVagadia for performing religious ceremony in rickshaw driven by
\n\tUkabhai, owned by Yakub Noormohamad after deciding fare, at about
\n\t12.00 hours near Vagadia Railway Station, passed through unmanned
\n\trailway crossing No. 66\/C. At that time, train going towards Rajkot
\n\tSide on route of Bhopal-Rajkot passed through said track and engine
\n\tof said train dashed with said rickshaw which resulted in death of
\n\ttotal five persons including one driver and minor. It was a case of
\n\tclaimants before claims tribunal that around unmanned railway
\n\tcrossing, tracks are not in straight condition but they were having
\n\tcurving nature and such unmanned gates are dangerous for human life
\n\tand there was no signal or sign board and there was no approaching
\n\trough road as well as straight road and so, if vehicle has to pass
\n\tthrough railway track, then, it was not easy to pass through it
\n\tbecause there was no tar road and, therefore, there was no
\n\tcomfortable crossing  and there was no clear vision available to
\n\tdriver as well as user of vehicle because of number of trees
\n\tcovering area on both sides about more than one kilo meter and,
\n\ttherefore, engine driver was not able to see passing of any vehicle
\n\tand similarly, user of vehicle would also not be able to see whether
\n\tany train is coming from either of side or not. According to rules,
\n\tthis area from both sides of unmanned railway crossing is required
\n\tto be kept open  and there cannot be any hurdle of trees for
\n\tenabling driver of engine and user of vehicle passing through said
\n\tunmanned crossing to have complete and clear vision on both sides.
\n\tOn that point, as against the evidence of claimants, no evidence
\n\twhatsoever was produced by railway authority. Before claims
\n\ttribunal, written statement was filed by railway authority at Exh.
\n\t8, 16, 19 and 18 contending that it was a clear case of negligence
\n\tof driver of rickshaw and due to that accident has taken place and
\n\tthere was no negligence on the part of driver of railway engine but
\n\tsuch averments made in written statement remained as it is because
\n\tsuch averments made by railway authority in written statement have
\n\tnot been proved by railway authority by leading proper evidence
\n\tbefore claims tribunal. Engine Driver was also not examined by
\n\trailway authority before claims tribunal. For claimants, it was very
\n\tdifficult to examine eye witness because persons driving in rickshaw
\n\tas well as person driving rickshaw died in said accident and,
\n\ttherefore, person who immediately visited place of accident Shri
\n\tVahanbhai who filed FIR on 24.5.98 was examined before claims
\n\ttribunal and his evidence has been discussed by claims tribunal
\n\twhich was cross examined by railway authority. In his evidence
\n\tbefore claims tribunal, it was deposed by him that after accident,
\n\tauto rickshaw involved in accident was dragged by railway engine and
\n\trickshaw had been smashed completely and total five persons lost
\n\ttheir lives in said sad accident including driver of rickshaw.
\n\tAccording to evidence of claimant before claims tribunal, railway
\n\tauthority must have to provide manned  railway crossing for securing
\n\tsafety of human life. He deposed that from unmanned railway
\n\tcrossing, engine driver and user of vehicle must see from both sides
\n\tand must have vision of both sides but that was not so at the scene
\n\tof incident because of number of obstructions and due to number of
\n\ttrees and due to that, it was very much difficult for engine driver
\n\tas well as vehicle user to have vision of both sides while crossing
\n\tunmanned railway crossing and road which was prepared by railway
\n\tauthority between tracks of railway was also not found to be proper
\n\tand there were ditches between both tracks which amounts to
\n\tobstructions to passing of vehicle through such tracks and there was
\n\tno sign board\/signal or picture of engine and there was no even
\n\tmarking or any indication provided by railway authority on said
\n\tunmanned railway crossing where accident had taken place.
\n\tRequirements as per rules to be maintained by railway authority had
\n\tnot been found on unmanned railway crossing  and according to
\n\tcomplainant, in his evidence, there was no clear vision available
\n\ton unmanned gate from both sides. Evidence of complainant was cross
\n\texamined. No doubt, he was not an eye witness to said accident but
\n\the was a person who had immediately visited place of accident after
\n\taccident having  knowledge and clear information about place of
\n\taccident and also having knowledge of situation of railway track
\n\troad and not having clear vision from both sides and also
\n\tconsidering panchanama and condition of auto rickshaw involved in
\n\taccident. Claims tribunal has considered these facts found from
\n\tplace of accident as deposed by complainant before claims tribunal
\n\tin his chief examination which were not challenged in cross
\n\texamination by railway authority, therefore, in respect to site of
\n\taccident or place of accident, whatever evidence available before
\n\tclaims tribunal, complainant was cross examined, that has been
\n\tconsidered by claims tribunal, Surendranagar and there was no any
\n\tevidence in rebuttal produced by railway authority before claims
\n\ttribunal. When complainant was examined who has visited place of
\n\taccident immediately after accident and who was having clear picture
\n\tof place of accident and also knowing fully well condition of road
\n\tfrom both sides and also position of track, track not found to be
\n\tstraight but having curves  and also not having clear vision about
\n\t1000 meter due to various kind of obstruction like trees available
\n\ton both sides which facts are not challenged by railway authority
\n\twhile cross examining said witness. Therefore, claims tribunal has
\n\tconsidered these facts which were  neither challenged nor rebutted
\n\tby railway authority by producing any evidence to the contrary.
\n\tClaims Tribunal has also considered decision of this Court in case
\n\tof Hamidabanu Balubhai versus Vasantbhai Virabhai Harijan, reported
\n\tin 2007 ACJ Page 240 (Gujarat); [2] GSRTC versus Hanif Mohamad
\n\tBismillakhan, 1997 (1) GLR 631; [3] GSRTC versus Kamlaben Valjibhai
\n\tVora, 1997 (3) GLR 2528; [4] New India Assurance Co. versus
\n\tAshokbhai Ranchhodbhai Patel, 1992 (1) GLR 482. After considering
\n\taforesaid decisions while keeping in view facts of present case
\n\tnamely evidence of complainant not challenged by railway authority
\n\tin his cross examination, claims tribunal has come to conclusion
\n\tthat it is a case of composite negligence of both drivers and
\n\trailway authority is also equally responsible for that in not
\n\tmaintaining properly unmanned railway crossing and not putting
\n\twriting, sign board or signal and putting no indication at the place
\n\tof incident and considering such evidence on record, claims tribunal
\n\thas held that engine driver as well as driver of auto rickshaw both
\n\tare negligent to the extent of 50:50. According to my opinion,
\n\tconsidering evidence of complainant as appreciated by claims
\n\ttribunal  against which no evidence in rebuttal was produced by
\n\trailway authority before claims tribunal, claims tribunal has
\n\trightly decided that it is a case of composite negligence and
\n\tdrivers of both vehicles are equally responsible for such accident,
\n\ttherefore, contentions raised by learned Advocate Mr.Mehta cannot be
\n\taccepted because from appellant side, no evidence was produced
\n\tbefore claims tribunal, Surendranagar.  According to my opinion, for
\n\tproving sole negligence on the part of driver of auto rickshaw, it
\n\tis the duty of appellant railway authority to prove that all safe
\n\tguards necessary to be provided on unmanned gate were provided and
\n\tmaintained by railway authority at the place of accident and looking
\n\tto the discussion made by claims tribunal for deciding issue of
\n\tnegligence between engine driver and driver of auto rickshaw, it
\n\tappears that no evidence to that effect was produced by railway
\n\tauthority before claims tribunal because the statements made by
\n\tcomplainant in his evidence on material points were not challenged
\n\tby railway authority during his cross examination and all those
\n\tstatements made by complainant in his examination in chief were not
\n\tchallenged or rebutted by railway authority and therefore, in view
\n\tof that finding given by claims tribunal in respect of question of
\n\tnegligence deciding 50:50 per cent negligence of both drivers cannot
\n\tbe found to be erroneous or contrary to facts on record. According
\n\tto my opinion, such findings recorded by claims tribunal after
\n\tconsidering legal evidence cannot be considered to be baseless and
\n\tperverse and, therefore, contentions raised by learned Advocate
\n\tMr.Bipin I. Mehta in that regard cannot be accepted and same are,
\n\ttherefore, rejected.\n<\/p>\n
As
\n\tregards contentions raised by learned Advocate Mr. Mehta in respect
\n\tto assessment of income, looking to evidence of claimants as
\n\tappreciated by claims tribunal, claims tribunal has rightly examined
\n\tmatter while assessing income of deceased based on evidence of
\n\tclaimants against which there was no any evidence in rebuttal
\n\tproduced by appellant railway authority before claims tribunal.
\n\tWhile deciding question of income, claims tribunal has also
\n\tconsidered decision of this court in case of GSRTC versus Kamlaben
\n\tVora reported in 2001 GLR page 252 para 70 to 76 [2] Rita alias
\n\tVanita Dipak Hira versus Ahmedabad Municipal Transport Corporation
\n\treported in 1999 (1) GLR page 388 para 9; [3] United India Insurance
\n\tCompany Ltd. Versus Chandubhai Gokalbhai reported in 2003 (3) GLR
\n\tpage 2386 para 9; [4] New India Assurance Co. versus Madhavsing
\n\tNathuji reported in 2003 (1) GLR page 517 para 11; [5]
\n\tMithunkulkrushna Banerjee versus Sitanath Bengali and others
\n\treported in 2007 (1) GLR 354 Head Note B, para 5 and after
\n\tconsidering aforesaid decisions in light of evidence on record in
\n\trespect to income of deceased in each case, claims tribunal has
\n\tdecided income of deceased in each case. According to my opinion,
\n\tclaims tribunal has rightly assessed income of deceased and has
\n\trightly applied multiplier considering age of deceased in each case
\n\tand on that basis, has rightly worked out compensation available to
\n\tclaimants in each case which cannot be considered to be unjust or on
\n\thigher side in any manner whatsoever and, therefore, contentions
\n\traised by learned Advocate Mr. Mehta in that regard cannot be
\n\taccepted. Same are, therefore, rejected.\n<\/p>\n
In
\n\tview of aforesaid discussion made by this Court after perusal of
\n\tcommon award passed by claims tribunal at Surendranagar and also
\n\tconsidering submissions made by learned advocates for respective
\n\tparties, according to my opinion, common award made by claims
\n\ttribunal is found to be quite legal, proper and just and no error is
\n\tcommitted by claims tribunal either in deciding question of
\n\tnegligence between engine driver and driver of auto rickshaw or in
\n\tdeciding quantum of compensation and, hence, there is no substance
\n\tin these appeals and therefore, these appeals are required to be
\n\tdismissed.\n<\/p>\n
Accordingly,
\n\tin view of reasons recorded herein above, these appeals are
\n\tdismissed. Amount, if any, deposited by appellant in registry of
\n\tthis court be transmitted to claims tribunal immediately.\n<\/p>\n
Civil
\n\tApplications for stay filed by appellant also stands disposed of
\n\taccordingly.\n<\/p>\n
(H.K.\n<\/p>\n
Rathod,J.)<\/p>\n
Vyas<\/p>\n
\t\t   \u00a0\u00a0\u00a0<\/p>\n
\t\t   Top<\/p>\n","protected":false},"excerpt":{"rendered":"
Gujarat High Court Union vs Legal on 1 February, 2010 Author: H.K.Rathod,&Nbsp; 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. […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[16,8],"tags":[],"class_list":["post-69211","post","type-post","status-publish","format-standard","hentry","category-gujarat-high-court","category-high-court"],"yoast_head":"\nUnion vs Legal on 1 February, 2010 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/union-vs-legal-on-1-february-2010\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Union vs Legal on 1 February, 2010 - 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