Delhi High Court
Sheela & Ors. vs Union Of India & Anr. on 3 November, 2017
$~R-398
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on: 3rd November, 2017
+ MAC.APP. 871/2011
SHEELA & ORS. ..... Appellants
Through: None.
versus
UNION OF INDIA & ANR. ..... Respondents
Through: Mr. A.K. Soni, Adv. for R-2.
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
JUDGMENT (ORAL)
1. Ranbir Sharma was driving a three wheelor scooter bearing
registration no. HR 38 E 8022 (TSR) on 13.03.2002 and at about 4.00
p.m. was crossing an unmanned railway crossing at railway Phatak
no. 14, Prem Nagar, near Mundka Railway Station when his TSR was
hit by a railway train (Janata Express), driven by Dev Raj (RW1),
Rajinder Sharma (RW2) being the guard deputed by the railways on
the said train. As a result of the impact, Ranbir Sharma suffered
injuries which proved to be fatal. His wife and other members of the
family dependent on him, they being the appellants (collectively, the
claimants), instituted accident claim case (suit no. 18/06/02) on
28.05.2002 before the Motor Accident Claims Tribunal, Delhi,
impleading the Union of India through its General Manager, Head
Quarters office (claims branch) as the first respondent, in addition to
Oriental Insurance Company Limited, it being the insurer against third
party risk of the TSR as the second respondent. The claim case was
resisted by both the respondents and was decided by judgment dated
20.09.2007. It may be added here that the tribunal did not fasten any
liability on the insurance company since it could not be treated as a
case of third party claim, the insurer being the entity which had issued
insurance policy in respect of the TSR which was driven by the
deceased himself. It may be mentioned here that the exoneration of
the insurance company has not been challenged and, therefore, has
attained finality.
2. The issue of maintainability of accident claim case against the
backdrop of facts noted above arose on preliminary objections being
taken, it forming the subject matter of issue framed. The tribunal
answered the said issue in favour of the claimants. Since Union of
India (first respondent) did not challenge the correctness of the said
finding, the appeal at hand being of the claimants seeking enhanced
compensation, this Court ought not delve into the correctness of the
said view taken by the tribunal.
3. During the inquiry, the claimants had examined an eye
witness Ram Swaroop (PW-2) who deposed on the strength of his
affidavit (Ex.P2), this in addition to the record of investigation by the
police as brought in through the official witness Head Constable
Mahavir Singh (PW-3). On the other hand, the respondent examined
the train driver (RW1) and the guard of the train (RW2) to bring on
record its contention that there was no negligence on the part of train
driver. The tribunal has concluded that it was a case of contributory
negligence on both sides and apportioned the liability equally amongst
the train driver and the deceased TSR driver. It computed
compensation in the sum of Rs. 6,00,000/- that could be awarded but
directed first respondent, Union of India to pay 50% of the said
amount on account of finding of contributory negligence. The
compensation determined by the tribunal is based on calculation of
loss of dependency on the assumed income with the help of minimum
wages (Rs.3100) and on the multiplier of 15, with deduction of one-
third (1/3rd) on account of personal & living expenses.
4. The appeal of the claimants sought compensation to be
enhanced and the finding on the issue of contributory negligence to be
set aside. It was admitted and put in the category of 'regulars', to be
taken up in due course as per order dated 29.01.2013. When it is
taken up for hearing there is no appearance on either side. In view of
the absence of counsel for appellants and for respondent Union of
India, only the afore-mentioned two contentions raised in appeal are
considered.
5. On perusal of the tribunal's record, this Court finds no good
reason to disturb the finding on the issue of negligence on the part of
deceased. The evidence of PW-2 about the deceased TSR driver
having taken the precautions by looking in each direction before
attempting to cross the railway lines is, per se, not acceptable. It is not
a case where he was driving on a public road where the collision took
place with other objects or vehicles or individuals. It is a case where
the TSR driver knew that he was attempting to cross an unmanned
railway line. Having regard to the fact that the accident had occurred
at 4.00 p.m., it being not a case, or time, of poor visibility, judicial
notice being taken of the fact that railway lines generally follow a
straight path and since no objects conceivably would block the view
on either side, it not being difficult to see an incoming train,
particularly on account of the noise that it would create while in
motion, negligence of TSR driver is writ large on the record of the
case.
6. There is no error found committed by the tribunal in
calculating the compensation.
7. The appeal, therefore, is devoid of substance and is
dismissed.
R.K.GAUBA, J.
NOVEMBER 03, 2017
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