Gujarat High Court
Union Of India vs Amrutben Chandrakantbhai Bariya on 9 April, 2025
NEUTRAL CITATION
C/FA/2646/2024 ORDER DATED: 09/04/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 2646 of 2024
With
R/CROSS OBJECTION NO. 47 of 2025
In
R/FIRST APPEAL NO. 2646 of 2024
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UNION OF INDIA & ORS.
Versus
AMRUTBEN CHANDRAKANTBHAI BARIYA & ORS.
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Appearance:
MRS KRISHNA G RAWAL(1315) for the Appellant(s) No. 1,2,3
DELETED for the Defendant(s) No. 7,8
MR MOHSIN M HAKIM(5396) for the Defendant(s) No. 1,2,3,4,5,6
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CORAM:HONOURABLE MR. JUSTICE DEVAN M. DESAI
Date : 09/04/2025
ORAL ORDER
1. The captioned First Appeal is filed by appellants
- original respondents and Cross Objections is filed by the claimants for enhancement of compensation against the judgment and award dated 20.07.2022 passed by the learned Motor Accident Claims Tribunal (Aux.) & Addi- tional District Judge, Bodeli, Dist. Chhotaudepur in MACP No.38 of 2021 (Old MACP No.1581 of 2017), wherein the learned Tribunal has partly allowed the claim petition. Page 1 of 11 Uploaded by MANOJ KUMAR(HC01092) on Thu May 08 2025 Downloaded on : Fri May 09 21:26:53 IST 2025
NEUTRAL CITATION C/FA/2646/2024 ORDER DATED: 09/04/2025 undefined
2. Heard learned advocate Mrs.Krishna Rawal for the appellants and learned advocate Mr.Mohsin Hakim for respondent Nos.1 to 6.
3. Brief facts of the case are as under:-
3.1 Deceased Chandrakantbhai Bariya was working as a driver of tractor bearing registration GJ-06-AP-7562 which was attached to a water tanker. The owner of the said tactor-tanker was Shantilal Bhagwanlal Patel. On the day of accident i.e. on 08.07.2014 at about 7.30 to 8.00 p.m., the deceased was driving tractor attached with water tanker and was proceeding from Khervadi towards Bahadarpur village. While the vehicle was crossing an unmanned railway crossing near a pond close to Kherava village, taluka Sankheda, Dist.Chhotaudepur, it was struck by a passenger train going from Chhotaudepur to Vadodara. As the train was moving at full speed and the Page 2 of 11 Uploaded by MANOJ KUMAR(HC01092) on Thu May 08 2025 Downloaded on : Fri May 09 21:26:53 IST 2025 NEUTRAL CITATION C/FA/2646/2024 ORDER DATED: 09/04/2025 undefined deceased was attempting to cross the unmanned railway line, a collision occurred. As a result, the deceased sustained fatal injuries and succumbed. A complaint was lodged by Bharatbhai Laxmanbhai Baraiya before Sankheda Police station, Dist.Chhotaudepur.
3.2 Thereafter, claimants filed a claim petition claiming compensation Rs.40,00,000/- from the opponents.
Though served, Opponents did not appear and contest the claim petition. Claimant No.1 submitted examination-in- chief at Ex.14 and produced documentary evidence such as complaint, Inquest Panchnama, Panchnama of place of accident, FIR and Postmortem report. After considering the evidence on record, learned Tribunal found that the driver of tractor was negligent to the extent of 25% and the opponents-Railway Authorities were found negligent to the extent of 75%. Learned Tribunal partly allowed the claim petition and directed original opponent Nos.1, 3 and 4 Page 3 of 11 Uploaded by MANOJ KUMAR(HC01092) on Thu May 08 2025 Downloaded on : Fri May 09 21:26:53 IST 2025 NEUTRAL CITATION C/FA/2646/2024 ORDER DATED: 09/04/2025 undefined namely Union of India, Divisional Manager (Western Railways) and Chhotaudepur Railway Division respectively, to pay compensation jointly and severally to the tune of Rs.12,04,000/- with interest @9% per annum from the date of petition till realization to the claimants. 3.3 Being aggrieved and dissatisfied with the impugned judgment and award, appellants - original opponents have preferred the present First Appeal and original-claimants have filed cross objection for enhancement of compensation.
4. Learned advocate for the appellants submitted that the claim petition was decided ex-parte and that the appellants were not granted an opportunity to be heard. It is further submitted that the learned Tribunal had no jurisdiction to decide the claim petition since the Railways do not fall within the definition of Motor Vehicles Act. It is submitted that the accident occurred at an unmanned Page 4 of 11 Uploaded by MANOJ KUMAR(HC01092) on Thu May 08 2025 Downloaded on : Fri May 09 21:26:53 IST 2025 NEUTRAL CITATION C/FA/2646/2024 ORDER DATED: 09/04/2025 undefined railway crossing, the deceased ought to have remain more vigilant while crossing such unmanned crossing. It is submitted that considering the happening of accident, learned Tribunal has failed to hold deceased sole negligent. It is submitted that in absence of any evidence, learned Tribunal has wrongly held appellant's negligent to the extent of 75%.
4.1 It is also pointed out that though the learned Tribunal held the deceased 25% negligent, however, learned Tribunal while awarding compensation has not deduced 25% from the compensation amount on account of contributory negligence. Except the above, no other sub- missions are canvassed by learned advocate for the appellants.
5. Per contra, learned advocate for the respondents-claimants submitted that the learned Tribunal has committed any error by holding the deceased negligent Page 5 of 11 Uploaded by MANOJ KUMAR(HC01092) on Thu May 08 2025 Downloaded on : Fri May 09 21:26:53 IST 2025 NEUTRAL CITATION C/FA/2646/2024 ORDER DATED: 09/04/2025 undefined to the extent of 25%. When the evidence clearly established that the railway crossing was unmanned and the train driver failed to sound the horn in time and there were no barriers to regulate traffic negligence ought to have been attributed to the Railway rather than on deceased opponents did not contest the claim petition. It is further submitted that the cross-objection is filed raising the grievance of attributing negligence on deceased and non-consideration of funeral expenses and loss of consortium as per the settled law. No other submissions are canvassed by the learned advocate for the respondents
-original claimants.
6. I have considered the submissions canvassed by learned advocates for the respective parties and also perused the record and proceedings. It is an undisputed fact which is coming out from the record that the accident has occurred on an unmanned railway crossing. Though Page 6 of 11 Uploaded by MANOJ KUMAR(HC01092) on Thu May 08 2025 Downloaded on : Fri May 09 21:26:53 IST 2025 NEUTRAL CITATION C/FA/2646/2024 ORDER DATED: 09/04/2025 undefined served, opponents - Railway Authorities did not contest the claim petition. Learned Tribunal while assessing the negligence, considered the panchnama Ex.19 which showed a signboard with written in three different language i.e. 'Stop' 'Thobo' and 'Rukiye' in English, Gujarati and Hindi languages respectively. It appears from facts pleaded that the deceased was frequently using this unmanned crossing and that villagers also regularly crossing said unmanned crossing. Under these circumstances, deceased was expected to exercise due caution while crossing such unmanned corssing. At the same time, it was the responsibility of the Railway Authorities to provide gates or barricades to regulate traffic and ensure public safety.
7. It appears from the record and the facts of the case that, deceased as well as Railway Authorities were found negligent in causing the unfortunate accident. Furthermore, the failure to contest the claim petition by Page 7 of 11 Uploaded by MANOJ KUMAR(HC01092) on Thu May 08 2025 Downloaded on : Fri May 09 21:26:53 IST 2025 NEUTRAL CITATION C/FA/2646/2024 ORDER DATED: 09/04/2025 undefined Railway Authorities also reflects sheer negligence and carelessness on their part. When the learned Tribunal after considering the panchnama which is produced at Ex.19 has found driver of the tractor negligent to the extent of 25% and the driver of railway found negligent to the extent of 75%, I do not find any reason to interfere in such facts of findings arrived at by the learned Tribunal.
8. Regarding the quantum of compensation in absence of any controversy assessment of monthly income at Rs.7,500/- per month and adding 40% as a prospective income, in the absence of documentary evidence is just and reasonable. The deceased was aged about 38 years and the claimants are 8 in numbers. However, learned Tribunal has failed to appreciate the settled principles of law while awarding compensation under the head of loss of consortium and awarded only Rs.9,500/- which is not just and proper. As per the settled proposition of law in Page 8 of 11 Uploaded by MANOJ KUMAR(HC01092) on Thu May 08 2025 Downloaded on : Fri May 09 21:26:53 IST 2025 NEUTRAL CITATION C/FA/2646/2024 ORDER DATED: 09/04/2025 undefined case of National Insurance Company Limited Vs. Pranay Sethi & Ors. reported in (2017) 16 SCC 680, claimants are entitled to Rs.3,87,200/- (Rs.48,400 x 8) under the head of loss of consortium. So far as compensation under the head of funeral expenses and loss of estate, claimants are entitled to Rs.18,150/- each respectively.
9. In view of the aforesaid discussions, the claimants are entitled to the following amount of compensation:-
Under the Head of Compensation of Rs.
Loss of dependency 11,34,000
Loss of consortium 3,87,200/-
(Rs.48,400 x 8 = Rs.3,87,200/-)
Spouse, Parent and 2 filial
Loss of estate 18,150/-
Funeral expenses 18,150/-
Grand Total 15,57,500/-
Less awarded amount 2,65,125/-
(Rs.15,57,500 - Rs.12,04,000) =
Rs.3,53,500/-
less negligence (Rs.3,53,500 - 25%) = Rs.2,65,125/- (Enhanced).
Interest @9% Page 9 of 11 Uploaded by MANOJ KUMAR(HC01092) on Thu May 08 2025 Downloaded on : Fri May 09 21:26:53 IST 2025 NEUTRAL CITATION C/FA/2646/2024 ORDER DATED: 09/04/2025 undefined
10. The claimants are entitled to enhanced amount of compensation of Rs.2,65,125 @ 9% per annum from the date of claim petition till realization from Railway Authority.
11. The Railway Authority is directed to deposit enhanced amount of compensation with interest as above within a period of Six Weeks from the date of receipt of this order.
12. Upon such deposit, it will be open to the claimants to approach the learned Tribunal for appropriate orders for withdrawal. The learned Tribunal shall disburse the same after proper identification and verification following due procedure.
13. While making the payment, learned Tribunal/Court shall deduct the Court Fess, if not paid, in accordance with prevailing Rule.
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14. Cross objection filed by the original claimants are partly allowed. The judgment and award dated 20.07.2022 passed by the learned Motor Accident Claims Tribunal (Aux.) & Additional District Judge, Bodeli, Dist. Chhotaudepur in MACP No.38 of 2021 (Old MACP No.1581 of 2017), is hereby modified to the aforesaid extent.
15. Accordingly, learned Tribunal is directed to deduct 25% of the total amount under the head of contributory negligence before final disbursement.
16. Considering the aforesaid facts and circumstances of the case, the present First Appeal filed by the original opponents is disposed of accordingly.
17. Record and proceedings, if any, received be sent back to the concerned Court/Tribunal.
(D. M. DESAI,J) MANOJ Page 11 of 11 Uploaded by MANOJ KUMAR(HC01092) on Thu May 08 2025 Downloaded on : Fri May 09 21:26:53 IST 2025