Karnataka High Court

T.S.Savithramma vs Union Of India on 28 July, 2023

Bench: T G Gowda

                                       MFA NO.8067 OF 2014
                             1

  IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 28TH DAY OF JULY, 2023

                           BEFORE

 THE HON'BLE MR. JUSTICE T.G.SHIVASHANKARE GOWDA

            MFA NO. 8067 OF 2014 (MV-D)

BETWEEN:

1.     T.S.SAVITHRAMMA
       W/O LATE JAYAPPA
       AGED ABOUT 52 YEARS

2.     K J SRIDHARA
       S/O LATE JAYAPPA
       AGED ABOUT 33 YEARS

3.     K J SAVITHA
       D/O LATE JAYAPPA
       AGED ABOUT 30 YEARS

4.     K J SUNIL
       S/O LATE JAYAPPA
       AGED ABOUT 29 YEARS

5.     SMT SHANKARAMMA
       W/O LATE BASAPPA
       AGED ABOUT 79 YEARS

       ALL ARE R/O SINGAPURA VILLAGE
       POST: HULLUR, TALUK
       CHITRADURGA- 577 501                ... APPELLANTS

(BY SRI.B. PRAMOD, ADV.)

AND:

1.     UNION OF INDIA, (DEPARTMENT OF RAILWAYS)
       BY ITS GENERAL MANAGER, SOUTH WESTERN
       RAILWAYS, DIVISIONAL OFFICE AT HUBLI 580 020
                                        MFA NO.8067 OF 2014
                           2

2.    SOUTH WESTERN RAILWAY
      BY ITS DIVISIONAL RAILWAY MANAGER
      DIVISIONAL OFFICE, AT MYSORE 570 001

3.    THE STATION MANAGER
      CHITRADURGA RAILWAY STATION (SMC)
      SOUTH WESTERN RAILWAYS
      AT CHITRADURGA 577 501         ... RESPONDENTS

(BY SMT. KAVITHA H.C., ADV.)


     THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED 25.8.2014
PASSED IN MVC NO.1587/2009 ON THE FILE OF THE
ADDITIONAL DISTRICT & SESSIONS JUDGE, ADDITIONAL
MACT, CHITRADURGA, DISMISSING THE CLAIM PETITION FOR
COMPENSATION.

      THIS MFA HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT    ON 07.07.2023 AND COMING ON FOR
PRONOUNCEMENT OF JUDGMENT THIS DAY, THE COURT
DELIVERED THE FOLLOWING:

                     JUDGMENT

In this appeal, the petitioners have challenged

the judgment dated 25.08.2014 passed in

M.V.C.No.1587/2009 by the Additional District and

Sessions Judge and Addl.M.A.C.T., Chitradurga ('the

Tribunal' in short) in dismissing the claim petition

filed under Section 166 of the Motor Vehicles Act,

1988.

MFA NO.8067 OF 2014

2. For the sake of convenience, the rank of the

parties will be referred to as per their status before

the Tribunal.

3. Brief facts of the petitioners case are that,

the husband of petitioner No.1, father of petitioners

No.2 to 4 and son of petitioner No.5, by name

Jayappa, the deceased, was met with an accident on

12.06.2003 at 12.20 p.m., while driving the car

bearing registration No.KA-16/M-8055 on unmanned

railway gate hit against the Train No.252 and

suffered injuries and died on 18.06.2003 at Manipal

Hospital, Bangalore. Seeking grant of compensation,

the petitioners have approached the Tribunal. The

claim was opposed by the respondents. By order

dated 05.07.2013, the claim petition came to be

dismissed. Against the said order, the petitioners

have filed an appeal before this court in

M.F.A.No.8657/2013 (MV). By order dated

31.01.2014, the order of dismissal was set aside and MFA NO.8067 OF 2014

the matter was remanded. After remand, the

Tribunal has further taken up the matter and

assessed the compensation of Rs.15,23,000/- with

interest @ 6% per annum holding that if the claim is

to be allowed, the petitioners are entitled for said

compensation. However, on the ground that the

accident has occurred due to sole negligence of the

deceased, the petitioners are not entitled for said

compensation and dismissed the claim petition.

Aggrieved by the same, the petitioners have field

this appeal on various grounds.

4. Heard the arguments of Sri.B.Pramod,

learned counsel for the petitioners and

Smt.H.C.Kavitha, learned counsel for respondents.

5. It is the contention of the learned counsel for

the petitioners that, there is a negligence on the part

of the respondents as the Railway crossing was

unmanned without any proper signal, the Tribunal

has committed an error in observing that negligence MFA NO.8067 OF 2014

is on the part of the deceased and the impugned

order of dismissal is erroneous and sought for

interference.

6. Per contra, learned counsel for the

respondents has contended that the evidence placed

before the Tribunal clearly points out that the

deceased himself drove the car in a rash and

negligent manner ignoring that there is unmanned

railway gate ahead and he had negligently went and

hit against the Train No.252 and therefore, he

himself being the Tortfeisor, the petitioners are not

entitled to claim compensation and he has supported

the impugned judgment.

7. I have given my anxious consideration to

the arguments advanced on behalf of both parties

and also perused the materials on record.

8. On a careful perusal of the materials on

record, it is pertinent to note that the accident took MFA NO.8067 OF 2014

place because of there was unmanned railway

crossing. There is no evidence on record to indicate

that the unmanned railway crossing has been

indicated to public in any manner. Eyewitness PW-

2/K.R.Mallappa @ Malleshappa points out that inspite

of the sound horn on the arrival of the train being

visible, the deceased drove the car rashly and hit

against the train which, in fact, has been denied. It

has been explained that near Nagehalli, on both

sides of railway crossing, there existed 5 or 6 feet

height weeds and plants and there was no indication

of railway crossing ahead.

9. The accident, cause of accident, the injuries

sustained by the deceased and his death on account

of it have not been disputed. The only issue is,

whether because of own negligence of the deceased,

the petitioners are debarred from entitlement of any

compensation. The petitioners have invoked Section

166 of the M.V.Act whereas they had also an option MFA NO.8067 OF 2014

to approach the Railway Claims Tribunal. Learned

counsel for the petitioners has relied upon the

judgment of the Hon'ble Orissa High Court reported

in 2014 SCC Online Orissa 174 in the matter of

Nakula Nayak -vs- Divisional Railway Manager

to the effect that if the claim is made before the

Railway Claims Tribunal for 'no fault liability', the

petitioners are entitled to claim Rs.4,00,000/-. He

has also relied upon the latest amendment to the

Railway Accidents and Untoward Incidents

(Compensation) Rules, 1990 (for short 'the Rules of

1990') where the schedule has been amended by

fixing the compensation of Rs.8,00,000/- instead of

Rs.4,00,000/-. On perusal of the same, the

amended Rule came into effect from 01.01.2017

wherein the accident in question was on 12.06.2003.

Hence, the amendment cannot be given effect to

retrospectively.

MFA NO.8067 OF 2014

10. In the above judgment, the Orissa High

Court referring to claim made under Section 124 of

the Railway Act read with Rules of 1990, held that

compensation for no fault liability to the passenger

who expires in railway accident is Rs.4,00,000/- with

interest @ 6% per annum. Here in this case, even if

the petitioners approached the Railway Claims

Tribunal under the provisions of Rules of 1990, with

no fault liability of the deceased, they could have

been awarded with compensation of Rs.4 lakhs.

However, these aspects have not been considered by

the Tribunal, the Tribunal has considered the claim

only under Section 166 of the M.V.Act. The claim

was of the year 2009 and the accident was of the

year 2003. Hence, it is not proper to ask the

petitioners to go before the Railway Claims Tribunal

and if they were to be before the Railway Claims

Tribunal, they would have been entitled for

compensation of Rs.4 lakhs under no fault liability.

MFA NO.8067 OF 2014

11. As found from the records, when the

accident took place in an unmanned level crossing

and the deceased was driving the car at the time of

accident, no person will risk himself for the sake of

compensation to be paid to his legal representatives.

On perusal of the impugned judgment, the Tribunal

has lost sight of these aspects and it has simply

treated the claim under Section 166 of the M.V.Act

holding that the petitioners are not entitled to claim

compensation as the deceased was at fault. Hence,

even if taken into consideration the compensation

awarded under 'no fault liability', it is just and proper

to award global compensation of Rs.4 lakhs. Hence,

the appeal deserves to be allowed in part. In the

result, the following:

ORDER

(i) The appeal is allowed in part.

(ii) The impugned judgment is modified accordingly.

MFA NO.8067 OF 2014

(iii) The appellants/petitioners would be entitled for global compensation of Rs.4,00,000/- along with interest at the rate of 6% per annum.

(iv) The respondents are directed to deposit the said amount within a period of eight weeks from the date of receipt of a certified copy of this judgment.