FAO NO. 5965 of 2010 1 IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH FAO NO. 5965 of 2010 Date of order: 18.10.2011 National Insurance Co. Ltd. ..... Appellant Versus Manmeen Kaur and others ..... Respondents CORAM: HON'BLE MR. JUSTICE VIJENDER SINGH MALIK Present: Mr.Paul S. Saini,Advocate for the appellant. None for respondent no.9. **** Vijender Singh Malik, J. This is an appeal brought by National Insurance Company Ltd., the insurer of three wheeler bearing registration no.PB-06B/7092, which has been involved in an accident with a running train at an unmanned railway level crossing on 23.08.2001. The claim petition had been brought by the husband and children of Sawinder Kaur, who had died in the aforesaid accident. The claim of Manmeen Kaur and others in this regard is as under:- On 23.08.2001 Sawinder Kaur wife of Gurbax Singh was travelling in a three wheeler bearing registration no. PB-06B/7092 from village Bariar to Gurdaspur. She was accompanied by various other passengers in the said vehicle. The said three wheeler was owned by Hans Raj and was driven by his son named Ashwani Kumar. Ashwani Kumar was driving the said vehicle in a rash and negligent manner and when he FAO NO. 5965 of 2010 2 was crossing the unmanned railway level crossing at gate no.C-550/74/1.2 Gurdaspur DNN at about 11.00 AM, it stopped on the track and did not move. In the meanwhile, a train came from the side of Gurdaspur and had hit the three wheeler and dragged the same to a good distance. Sawinder Kaur and some other persons died at the spot. Only Balraj Kaur survived from the passengers of the three wheeler. The accident is claimed to have occurred due to rash and negligent driving of Ashwani Kumar, who failed to take the necessary precautions at the time of entering an unmanned railway level crossing. Compensation in a sum of Rs.10,00,000/- was claimed on the death of Sawinder Kaur. Respondent no.1, National Insurance Company Ltd., is the insurer of the vehicle in question. It has questioned the maintainability of the petition in the present form. It has also pleaded that the driver of the insured vehicle was not holding or possessing a valid and effective driving licence at the time of the alleged accident. The petition is also claimed to be bad for non-joinder of necessary parties. The averments of the claimants on merits are also denied. Respondents no. 2 to 5 are the legal heirs of the owner and driver of three wheeler. They have filed written statement claiming that the vehicle was insured at the time of accident and that the insurance company has already satisfied the award, rendered in the claim petition brought by Amarjot. On notice, none appeared for respondent no.6, Union of India which had been proceeded against ex-parte. FAO NO. 5965 of 2010 3 On the pleadings of the parties, the following issues were framed by the Tribunal:- “1- Whether Sawinder Kaur died in a motor vehicle accident which took place on 23.8.2001 at about 11.00 AM with the train came from Gurdaspur side and pushed the vehicle alongwith passengers up to a distance of KM 74/7.8 due to rash and negligent driving of Ashwani Kumar driver of three wheeler No. PB-06B/7092 as alleged ?OPA 2- Whether the applicants are entitled to receive the compensation? If so, what amount and from whom?OPA 3- Whether the petition is not maintainable ?OPR 4- Relief” The parties led their respective evidence. Hearing learned counsel for the parties, learned Tribunal allowed the claim petition vide award dated 04.06.2010, awarding compensation in a sum of Rs.3,00,000/- on the death of Sawinder Kaur, payable by respondent no.1, insurance company alongwith simple interest at the rate of 9% per annum from the date of filing the petition till its realization. Aggrieved by the aforesaid award, National Insurance Company has brought this appeal questioning the fixing of the entire liability upon it to satisfy the award without ordering an apportionment of the same between the appellant and Union of India. FAO NO. 5965 of 2010 4 While issuing notice of motion, the appeal qua the claimants was dismissed and notice was ordered to be issued to respondent no.9. Shri Karminder Singh, learned counsel for respondent no.9 appeared on 31.01.2011 and thereafter consistently none has appeared on behalf of respondent no.9. Accordingly, I have heard Shri Paul S. Saini, learned counsel for the appellant and have gone through the record. Learned counsel for the appellant has submitted that the entire responsibility for payment of the compensation has been fastened upon the insurer of the three wheeler in question. According to him, it was a case of accident at an unmanned railway level crossing and the driver of the train was also responsible for this accident to some extent. According to him, in such a case Hon'ble High Court of Kerala at Ernakulam in Oriental Insurance Co. Ltd. V. Kunhirama Poduval and others 2002 ACJ 1492 has upheld the decision of the Tribunal who had apportioned the blame upon the auto rickshaw driver and the driver of the railway in the ratio of 60:40. Learned counsel for the appellant has drawn my attention to award dated 30.10.2004 (Annexure A-1) passed by learned Motor Accidents Claims Tribunal(Adhoc), Fast Track Court, Gurdaspur whereby the blame for the accident has been apportioned by the Tribunal in the ratio of 75:25 between the auto rickshaw driver and the driver of the railway. According to him, the said award has been passed in the matter of this very accident and, therefore, no different award could be passed in this case. FAO NO. 5965 of 2010 5 Learned counsel for the appellant has admitted that the award dated 30.10.2004 (Annexure A-1) was not brought to the notice of the Tribunal while deciding the case of Manmeen Kaur and others on 04.06.2010. If it is so then the Tribunal could decide the case of Manmeen Kaur and others on the evidence coming before it. The appellant could succeed in shaking off some liability only on the strength of the evidence led in this case. The evidence coming on the record is in the shape of statement of Ramesh Kumar, a witness of the accident, who has deposed that the accident is on account of the rash and negligent driving of Ashwani Kumar. No evidence was led on behalf of the respondents in this regard. In such situation, the question would be as to whether Union of India would be responsible to some extent to pay compensation only for the reason that the railway level crossing at the sight of the accident was unmanned. In my opinion no such finding can be given against Union of India for the reason that the railway level crossing was unmanned. There is no evidence coming on the record to show that no sign board was placed by the side of the crossing to inform the driver of the vehicle trying to cross the railway crossing that it was an unmanned railway level crossing. There is nothing on the record to show that the driver of the train did not take the precautions required while passing through an unmanned railway level crossing. So in these circumstances, the unshaken and unrebutted testimony of Ramesh Kumar would prove that the accident has been an outcome of rash and negligent driving of three wheeler by Ashwani Kumar alone. FAO NO. 5965 of 2010 6 The decision in Oriental Insurance Co. Ltd.'s case (supra) would have no application to the facts of this case. The said decision is on the peculiar facts of that case, which are not before me in this case. Therefore, the appellant cannot derive any benefit from the said decision. Keeping in view the aforesaid discussion, the appeal deserves to be dismissed and is dismissed as such. (VIJENDER SINGH MALIK) JUDGE 18 .10.2011 dinesh