Union Of India Thru General ... vs Shiv Nath Singh S/O Late Harak ...
2013 Latest Caselaw 6538 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?Court No. - 5
 
A.F.R.
 
Case :- FIRST APPEAL FROM ORDER No. - 1376 of 2010
 
Appellant :- Union Of India Thru General Manager North Eastern Railway
 
Respondent :- Shiv Nath Singh S/O Late Harak Singh & Ors.
 
Counsel for Appellant :- Brijesh Kumar Shukla
 
Counsel for Respondent :- R B Verma
 

 
Hon'ble Ritu Raj Awasthi, J.

Heard Mr. Brijesh Kumar Shukla, learned counsel for appellant as well as Mr. R.B. Verma, learned counsel for respondent nos. 1 to 3 and perused the record.

No one has appeared on behalf of respondent no. 4-owner of the vehicle.

This first appeal from order has been filed under Section 173 of Motor Vehicles Act, 1988 (for short 'the Act') against the judgment and order dated 31.8.2010 passed by the Motor Accident Claims Tribunal in Claim Petition No. 44/2008 (Shiv Nath Singh & Others Vs. Ram Charan Singh and Others) whereby 40% liability to pay compensation of the awarded amount has been fastened on the appellant.

Learned counsel for appellant submitted that the alleged accident had taken place between a motor vehicle i.e. Jeep bearing Registration No. UP 50-B/6586 and a train carrying passenger. The deceased was a passenger in the motor vehicle who had died due to the said accident.

It is submitted that the claim petition filed under Section 163-A of the Act against the appellant-Indian Railways was not maintainable as Section 163-A of the Act clearly provides that the owner of the motor vehicle or the authorized insurer shall be liable to pay compensation, in case of death or permanent disability due to the accident arising out of 'the use of motor vehicle' to the legal heirs or victim as the case may be.

Submission is that the claim petition filed under Section 163-A of the Act which is meant for no fault liability relates to the use of motor vehicle only. The definition of motor vehicle has been provided under definition clause under Section 2 of the Act and it does not include railways.

It is submitted that the learned Tribunal has failed to consider the aforesaid legal issue while deciding the claim petition and has wrongly awarded the compensation in favour of the claimants and against the appellant.

In support of his submissions, Mr. Brijesh Kumar Shukla, learned counsel for appellant has relied on the judgment of the Apex Court in the case of Surender Kumar Arora & another Vs. Dr. Manoj Bisla & others; (2012) 4 SCC 552, particularly paragraph 10, wherein it has been observed as under:

"10. In our view the issue that we have raised for our consideration is squarely covered by the decision of this Court in Oriental Insurance Co. Ltd. Vs. Meena Variyal, 2007 ACJ 1284 (SC). In the said decision the Court stated (SCC pp. 445-46, para 27):

"....Therefore, the victim of an accident or his dependents have an option either to proceed under Section 166 of the Act or under Section 163-A of the Act. Once they approach the Tribunal under Section 166 of the Act, they have necessarily to take upon themselves the burden of establishing the negligence of the driver or owner of the vehicle concerned. But if they proceed under Section 163-A of the Act, the compensation will be awarded in terms of the Schedule without calling upon the victim or his dependents to establish any negligence or default on the part of the owner of the vehicle or the driver of the vehicle."

He has also relied on the judgment of the Apex Court in the case of Deepal Girishbhai Soni and Others Vs. United India Insurance Company Ltd. Baroda; (2004) 5 SCC 385, particularly paragraph 57, wherein it has been observed as under:

"57. We, therefore, are of the opinion that the remedy for payment of compensation both under Sections 163-A and 166 being final and independent of each other as statutorily provided, a claimant cannot pursue his remedies thereunder simultaneously. One, thus, must opt/elect to go either for a proceeding under Section 163-A or under Section 166 of the Act, but not under both."

Learned counsel for appellant also submitted that there was no negligence on the part of the appellant as all precautionary measures were taken by the appellant. The alleged accident had taken place near village Piparidih, district Mau at railway crossing no. 6 at KM 79/6-7 on 12.10.2007 at 14:55 hours between Piparidh-Dulhpur Railway Station at an unmanned railway crossing.

It is submitted that the negligence was solely on the part of the driver of the motor vehicle and the appellant cannot be held liable to pay compensation, however, the Tribunal has wrongly held 40% liability on the present appellant to pay compensation which has been determined to the tune of Rs. 3,21,500/- along with 9% interest in case of default.

Learned counsel for respondents-claimants, on the other hand, submitted that the claim petition filed under Section 163-A of the Act was fully maintainable. It is submitted that in the case of claim petition filed under Section 163-A of the Act, the claimants are not required to plead or establish that the death or permanent disability in respect of which claim has been made was due to any wrongful act or neglect or default of the owner of the vehicle or vehicles concerned or any other person. It is also submitted that as held by the Apex Court in the case of Union of India Vs. Bhagwati Prasad and Others; 2002 (2) T.A.C. 1 (S.C.) the claim petition filed under Motor Vehicles Act involving accident by motor vehicle with railway train is fully maintainable. The claim petition against the Indian Railways was as such maintainable. 

I have considered the submissions made by the parties' counsel and gone through the record. 

The sole question for consideration before this Court is whether the claim petition filed under Section 163-A of the Act involving accident by a motor vehicle with a train wherein the deceased being passenger of motor vehicle was maintainable against the Railway Administration or not.

From perusal of the impugned judgment, it is evident that it was the case of the claimants that the alleged accident had taken place at an unmanned railway crossing between Piparidih-Dulhpur railway station on 12.10.2007 at 14:55 hours in which the deceased Lalsa Devi aged about 48 years had sustained injuries and died. It was specifically pleaded in the claim petition that the said accident had taken place due to negligence on the part of the driver of motor vehicle as well as the employees of railway administration.

It has been held by the Apex Court in the case of Union of India Vs. Bhagwati Prasad and Others (supra) that once it is established that the accident had taken place involving a motor vehicle and a train the Motor Accident Claims Tribunal has the jurisdiction to entertain the claim petition. Even if at a later stage it is established that there is negligence of other joint tort-feasor and not negligence of motor vehicle in accident, the claim petition would be maintainable. If the claim has been filed due to sustained injuries or death in an accident arising out of the use of motor vehicle then the Tribunal will have the jurisdiction to entertain the application for claim not only against owner or insurer of vehicle but also against the Railway Administration. Relevant paragraphs 3 & 4 of the judgment on reproduction read 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 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 dependent 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 tort-feasors, 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 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." The Court also came to hold that the 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 tort-feasor 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 Sawhney , 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 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 tort-feasors, if a finding on hearing is reached that it is solely the negligence of the joint tort-feasor and not the driver of the Motor Vehicle then would the Tribunal loose the jurisdiction to award compensation against the joint tort-feasor. 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 a 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 tort-feasor connected with the accident or against whom composite negligence is alleged. A combined reading of Section 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 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 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 Vehicle Claims Tribunal would be entitled to award compensation against the other joint tort-feasor, 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 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 tort-feasor concerned. It would be immaterial if the finding is arrived at that it is only other joint tort-feasor 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 at a later point of time that it is the negligence of the other joint tort-feasor 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 or there is no defect in the vehicle but the accident is only due to the sole negligence of the other parties/agenncies, 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.

4. In the aforesaid premises, we do not find any infirmity with the impugned judgment of the Division Bench of Allahabad High Court requiring interference of this Court. These appeals fail and are dismissed."

The provision of Section 163-A of the Act is a special provision as to payment of compensation on structured formula basis. In the claim petition filed under Section 163-A of the Act the claimant is not required to establish wrongful act or neglect or default of the owner of a vehicle or vehicles concerned or of any other person. It is meant for such cases where there is no sufficient evidence to establish the negligence on the part of the offending vehicle. The provision is meant for above such cases where the accident due to which permanent disability or death occurred is ascertained, however, there is no sufficient evidence to establish the wrongful act or neglect or default of the motor vehicle involved. 

Bare reading of Section 163-A of the Act makes the above points very much clear. Section 163-A of the Act for convenience is reproduced below:

"163-A. Special provisions as to payment of compensation on structured formula basis.-(1) Notwithstanding anything contained in this Act or in any other law for the time being in force or instrument having the force of law, the owner of the motor vehicle or the authorised insurer shall be liable to pay in the case of death or permanent disablement due to accident arising out of the use of motor vehicle, compensation, as indicated in the Second Schedule, to the legal heirs or the victim, as the case may.

Explanation.-For the purposes of this sub-section, "permanent disability" shall have the same meaning and extent as in the Workmen's Compensation Act, 1923 (8 of 1923).

(2) In any claim for compensation under sub-section (1), the claimant shall not be required to plead or establish that the death or permanent disablement in respect of which the claim has been made was due to any wrongful act or neglect or default of the owner of the vehicle or vehicles concerned or of any other person.

(3) The Central Government may, keeping in view the cost of living by notification in the official Gazette, from time to time amend the Second Schedule."

In the present case, it was the specific case of the respondents-claimants, which has also not been disputed by the present appellant, that there were sufficient pleadings before the Tribunal that there was negligence on the part of driver of the motor vehicle as well as railway administration and the learned Tribunal has come to conclusion that there was negligence on the part of Railway Administration as well as driver of the motor vehicle and the train, as such, I am of the view that in view of the law laid down by the Apex Court in the case of Union of India Vs. Bhagwari Prasad and Others (supra) the claim petition filed by the claimants was fully maintainable.

So far as the judgments relied by learned counsel for appellants is concerned, they do not relate to the question involved in the present appeal, as such, they are of no help to the appellants.

The appeal as such having no force is dismissed.

The judgment dated 31.8.2010 passed by the Motor Accident Claims Tribunal in Claim Petition No. 44/2008 (Shiv Nath Singh & Others Vs. Ram Charan Singh and Others) is affirmed. The appellant shall comply the judgment of the learned Tribunal and pay the compensation as awarded by the learned Tribunal.

It is informed by learned counsel for appellant that the liability to pay compensation as fastened by the learned Tribunal on the present appellant was only to the tune of 40% of the awarded amount i.e. 3,21,500/-. The entire amount has been deposited before the Tribunal.

The amount so deposited shall be released in favour of the respondents-claimants.

The statutory amount deposited before this Court at the time of filing of the appeal shall be remitted back to the Tribunal forthwith for the aforesaid purpose.

[Justice Ritu Raj Awasthi]

Order Date: - 23.10.2013

Santosh/-