Gujarat High Court

Union Of India vs Amrutben Chandrakantbhai Bariya on 9 April, 2025

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                             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
                      ==========================================================
                                               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
                      ==========================================================

                         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.

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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

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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

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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

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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

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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

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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

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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

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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%





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                             C/FA/2646/2024                                         ORDER DATED: 09/04/2025

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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